Bergdahl lawyers: McCain comments violate due process rights

RALEIGH, N.C. – The Army sought to have U.S. Sen. John McCain back away from statements about punishment for Bowe Bergdahl because of concerns about hurting the soldier's right to a fair trial, according to newly released emails.

The emails were revealed in a motion filed Monday seeking the dismissal of charges against Bergdahl, who walked off his post in Afghanistan in 2009 and wound up in enemy captivity for five years. The exchange illustrates for the first time how concerned top Army officials were that McCain's statements could interfere with the case.

Defense lawyers argue Bergdahl's due process rights were violated by McCain, who leads a Senate committee that can approve or scuttle assignments for military commanders. McCain said last October that the Senate Armed Services Committee would investigate if Bergdahl weren't punished.

Two days later, a colonel in the Army Office of the Chief of Legislative Liaison emailed a lawyer for the Senate committee asking for McCain to back off his comments. The email cited "serious concerns across the Army" that McCain's statement could help Bergdahl show unlawful command influence.

"Obviously, the Chairman's statement is out there. But if it is at all possible to have him issue a curative statement ... that could be tremendously helpful," said the colonel, whose name was redacted, suggesting McCain could say he had faith in the military's handling of the case.

McCain never released such a statement, according to the defense motion.

Bergdahl, who is from Idaho, is charged with desertion and misbehavior before the enemy, and his trial is scheduled for 2017 at Fort Bragg. The latter charge carries a sentence of up to life in prison.

Rachel VanLandingham, a legal scholar and former Air Force lawyer, said she believes McCain's comments have tainted the case, but also said it will be hard to convince the judge to throw out the charges. Still, she said the new emails give the defense strong evidence.

"If even the Army thinks there's an appearance of unfairness, how could there not be a due process violation here?" said VanLandingham, who teaches law at Southwestern Law School in California.

A spokesman for McCain at the Senate committee didn't return a message seeking comment.

Army spokesman Paul Boyce said in an email that the branch maintains "careful respect for the military-judicial process."

A May 5, 2015, email from a lawyer for the Senate committee said McCain was interested in holding a hearing on the Bergdahl case and asked for the Army's opinion. At that time, Bergdahl was back in the U.S. awaiting a military hearing similar to a civilian grand jury.

Two days later, an official in the Office of the Chief of Legislative Liaison wrote back that the Army strongly opposed a congressional hearing because it could give "the appearance of denial of the fair administration of justice for SGT Bergdahl."

The official, whose name is redacted, writes "statements by elected officials with oversight responsibilities at a hearing will have an impact and may give the appearance of pressuring court members/finders of fact ... this would equate to a denial of due process and the right to a fair trial."

Four months later, in September, Bergdahl faced the preliminary Article 32 hearing in Texas. Afterward, the hearing officer recommended sending the case to a misdemeanor-level tribunal and that imprisonment wasn't warranted.

But in October 2015, McCain told a reporter: "If it comes out that (Bergdahl) has no punishment, we're going to have to have a hearing in the Senate Armed Services Committee."

Then in December, Army Gen. Robert Abrams sent Bergdahl's case to a general court martial, rejecting the hearing officer's recommendation.

The defense argues the chain of events shows "impermissible meddling" by McCain and says the judge should either throw out the charges, or order that Bergdahl face no punishment if convicted.

Eric Carpenter, a former Army lawyer who teaches at Florida International University, said McCain's statements were understood by senior Army officers as a tacit threat.

"If you read between the lines, McCain was letting senior officers know that he would hold up promotions and assignments if things did not go his way," Carpenter said. "That is not an idle threat."